Key points

In legal terms, copyright, data protection and performer’s rights will be the most significant issues for institutions to consider

Where materials are produced by a lecturer (employee) as part of his/her job, copyright is generally owned by the employer (college or university) and permission is not needed to include them in a recording

Apart from certain exceptions, where a lecture includes works that have been created by non employees (eg visiting speakers, students, third parties) permission will be required to include them in a recording

Colleges and universities need consent of performers (including employees and visiting speakers) in order to record, copy, or make available a performance

Data protection law will apply to all identifiable individuals (students and lecturers). Processing must be fair and lawful: everyone attending should know that it is being recorded, why it's being recorded and who will have access to it. A recording-free zone might be set up to accommodate those who wish to opt-out.

Introduction

Recording lectures provides institutions with useful learning resources which can be viewed off campus and on demand. This has obvious advantages for distance learning, accessibility, revision and re-use of materials.

It is now common practice to store lectures on institutions' servers or remotely.

This guide considers the legal issues in recording and storing lectures for UK further and higher education. To fully realise the benefits and comply with the law, an institution must consider the rights of all relevant parties including students, staff and external parties, whose works, participation and content may appear within an audio or video recording.

To fully realise the benefits and comply with the law, an institution must consider the rights of all relevant parties

All rights in the lecture content will need to be cleared before a recording takes place unless fair dealing applies for the purpose of:

Illustration for instruction

Criticism, review, or quotation

Caricature parody or pastiche or

Copying carried out in order to make an accessible copy

Copyright will be relevant where lectures are being recorded. A variety of works are protected under copyright law, including: text, film, sound recordings, scripts, musical compositions, photographs, blogs, diagrams and still images. A recording is also a copyright work in its own right. The relevant legislation for copyright is the Copyright, Designs and Patents Act 1988 (CDPA) which provides certain exclusive rights to copyright owners, including the right to copy, communicate, distribute, perform and adapt their works.

Infringement may occur where a ‘substantial part’ of a work is copied without permission, usually in the form of a licence, from the copyright owner. What is a ‘substantial part’ is a qualitative judicial test that can be difficult to define or determine, and any institution relying on this test will be taking a risk. We will assume for the purposes of this paper, therefore, that copying is ‘substantial’.

Data protection law is applicable where personal data is being processed, ie where a recording is being made of identifiable living individuals (including lecturers and students). Any processing of personal data must be done in line with the Data Protection Act 2018 and General Data Protection Regulation.

Rights in a recording

In order to clarify what rights require to be cleared in any recording of a lecture, institutions must think about a number of legal issues.

Employer rights

Where an employee creates a literary, dramatic, musical, artistic work, or a film work, in the course of their employment, the default position in law is that copyright in the work will belong to the employer, unless there is a contract or agreement to the contrary (s. 11(2) CDPA).

Where an employee creates a work in the course of their employment, the default position is that copyright will belong to the employer

Accordingly, where materials are created by the lecturer (employee) working within their course of employment, and there is no agreement that states otherwise, the institution will own copyright in the works and copyright permission will not be required to include those works in a recording.

Example

A lecturer writes his lecture notes and reads from them in the lecture. He also includes an extract from a piece he wrote about volcanoes for a previous assessment.

The employer will own the copyright in the script, and the material on volcanoes, unless there is an agreement in place stating otherwise. This material can therefore be included in a recording without permission.

Example

An English lecturer is on holiday in Majorca. His hobby is photography and he takes many photographs of different sunsets. He includes one of these photographs to illustrate a Keats poem that he recites in a lecture.

In this case, the copyright in the photograph is probably owned by the lecturer as it was not taken in the course of his employment, and permission will be required to include it in a recording.

Section 11(2) does not, however, apply to sound recordings. So, where a lecturer makes an audio recording of the lecture for his/her own purposes, the copyright in the sound recording will probably be owned by the lecturer, not the employer. A college or university might argue that recordings carried out by the lecturer ‘on behalf of’ the college or university are owned by the institution but, to avoid risk and uncertainty, the lecturer’s permission should be obtained to make further use of the recording.

Note that rights in materials created by visiting speakers are likely to be owned by the speaker or their employer, and the institution will need a licence to record and reuse them.

Performer's rights

Part II of the CDPA also provides for performer’s rights which, although related to copyright, exist quite separately. The performer is the first owner of the performance, not the employer.

Performers have rights in their performance and any recording, film or broadcast of that performance. A ‘recording’ means a film, or sound recording, made directly from the live performance, a broadcast of the performance, or made from another recording of it. (s.180(2) CDPA).

Performer’s rights last for 50 years from the end of the year of the performance, unless the recording of the performance, other than a sound recording, is released, in which case it is 50 years from the year of release. For sound recordings published within 50 years, a performer’s rights extend to 70 years from the year of the recording, or year of release. If unpublished, performer’s rights last for 50 years.

Subject to certain permitted acts such as fair dealing, a performer’s rights are infringed where a recording of a substantial part of a performance is made without consent (s.182 CDPA), where a copy of that recording is made without consent (s.182A CDPA) or where copies of that performance are issued to the public without consent (s.182B CDPA).

The performance right is unique to that particular performance and it is a property right that can be dealt with in the same way as any other intellectual property rights; it can be licensed or it can be assigned (transferred) to another party e.g. the institution.

There is no definition of a ‘performer’ in the legislation, but there is a definition of what constitutes a ‘performance’ (s.180 (2) CDPA). This could be a dramatic or musical performance, a reading or recitation of a literary work, or a performance of a variety act or any similar presentation. The performance must be live but does not need to be public; an audience is not required.

it is arguable that a live delivery would be covered by the definition of ‘performance’

Although lectures are not expressly listed, it is arguable that a live delivery, a dramatic communication to others of opinions, thoughts and interpretation would be covered by the definition of ‘performance’. However, this is a risk decision. Many colleges and universities appear to include performance rights as part of model consent forms, ensuring they are licensed or assigned in favour of the institution.

Example

A lecture is delivered by an employee and it is recorded. The institution is aware that they will own the copyright in any script or materials created by their employee working in the course of their employment. However, the institution is concerned about performance rights and seeks consent of each individual performer as part of a standard model release form.

In this way the institution has certainty that the recording can subsequently be made available without any potential infringement of performance rights.

It is important therefore, that institutions make the position clear by way of an agreement or licence. Institutions may choose to ask performers to assign their performance rights in favour of the college or university, or to license them. When wording a licence agreement, a college or university should ensure that any permission extends to the intended future use of the recording. Such agreements should be separate documents, rather than being incorporated into employment contracts.

Example

A guest speaker delivers an inspiring recitation of his poetry as part of creative writing workshop. Many students are unable to attend but are assured the lecture will be recorded and made available on the VLE. All materials were created by the speaker and the institution has a licence that allows the recording to be accessed online.

The lecture recording is extremely popular, so much so that the college wishes to make it accessible as part of a series of open educational resources. However, they have not addressed the guest speaker’s performance rights at all. The speaker contacts the institution telling them to remove the resource unless he receives an annual fee. To prevent any negative publicity of a potential claim, although costly, the institution agrees to pay up.

It is also possible that other parties take an active part in a recording. In a lively debate, for example, there is likely to be student participation. In that case, each contributor may own rights in their individual ‘performance’ and consent will be required for the recording itself and its further use. There is no requirement of originality so each separate performance of the same work would have performance rights, although there may be some argument with regard to insubstantiality. By addressing this as part of the general consent form, an institution will have ensured this issue does not become actionable by the rights owner and is not therefore a barrier to the recordings being made available.

Moral rights

For employees, moral rights (the right to be identified as the true author of a copyright work and the right to object to any derogatory treatment of the work) do not apply to works created as part of their job. Employees cannot object to subsequent treatment of those works. However, the right to object to derogatory treatment and, where asserted, the right to be identified as the performer, do apply to an employee’s performance (s.205C and s.205F CDPA) and an institution will be bound by them.

For non employees, including students and guest speakers, moral rights will apply to any content created and performances carried out by them.

In order to be enforceable, a right to be identified as a performer must be asserted. An assertion is an indication that an individual wishes to exercise that right and is generally written and signed.

In the event of an action for infringement of the right to be identified as a performer, a court will take into account whether it is reasonably practical to identify the performer, and whether there was any delay in asserting the right when considering remedies for infringement (s.205D[4] CDPA).

To avoid the issue, an institution should consider asking all relevant parties to sign a waiver of their moral rights, in writing, prior to a recording being carried out. It would seem preferable from an institution’s point of view that any signed waiver is written in broad terms and not subject to revocation.

Third party rights

Where the copyright has expired in a work, it can be included freely by a college or university in a lecture recording. Where a work is still in copyright, the institution is likely to require permission from the copyright owner(s), or a licensing agreement that extends to materials being published online.

Subject to those specific exceptions discussed in the exceptions below, the permitted acts and exceptions contained in the CDPA are unlikely to apply where further copying and storing is being carried out.

Example

A lecturer instructs students on Spanish culture and, for illustration purposes, shows them the DVD ‘Abre Los Ojos’ to students on the course, on the institution’s premises, without fear of infringing copyright as this is a permitted act under s.34 (performing, playing or showing a work in the course of activities of an educational establishment).

The position is different, however, where the lecture, including the entire film is then recorded and stored on the VLE. This is because a copy is being made and this is an exclusive right of the copyright holder(s). Without permission, this is likely to be an infringement.

In this example, s.34 (showing students a film as part of teaching on campus) does not extend to the recording, and while the purpose of copying is clearly for illustration, the s.32 exception (see below) is limited by ‘fair dealing’. Copying an entire film is unlikely to be ‘fair’.

Interestingly, if the film was a broadcast output of the Educational Recording Agency Licence Scheme to which the institution subscribed and adhered, it could have been lawfully included within the recording.

As with all licensing agreements in place between institutions and third parties, the specific terms and conditions of these agreements should be checked to see what limits are imposed. It is very likely that any material licensed for the purposes of delivering a live lecture will require further permission in order to publish it on an openly accessible website. Currently, no blanket licence is available for institutions that would permit such use.

Where the audience is appropriately restricted, the Copyright Licensing Agency (CLA) Basic and Comprehensive HE licences do allow universities to scan extracts of text and still images from included published original works, subject to the usual terms and conditions (limits as to the extent that may be copied, appropriate acknowledgment, sufficient reporting, and secure access only to students on a particular course of study).

The Copyright Licensing Agency (CLA) provides educational licences which allow universities and colleges to scan extracts of texts, still images as well some content presented in a digital format, from included published original works and websites, subject to the usual terms and conditions (limits as to the extent that may be copied, appropriate acknowledgment, sufficient reporting, and secure access only to students on a particular course of study).

Where live lectures present content which adheres to the relevant CLA licence, a recording will not be precluded provided the same licence conditions are adhered to. Such a recording may only be made available to the same group of students to whom the lecture was originally presented and stored copies are restricted to the duration of the licence. If the lecture is stored beyond the end of an academic year, the scanned material must be reported again to CLA, and for every subsequent year.

In all cases, any use of included works should, of course, be reported to CLA under the terms and conditions of your CLA licence.

If you have any questions regarding this, please contact CLA for further advice.

Example

A university subscribes to the CLA Basic HE licence. A lecturer scans a short extract of an included work into a PowerPoint presentation, which is then recorded as part of the lecture. The university wishes to make it available to students. On checking the licence agreement, the terms state that the work may be accessible, including digital copies, to full time students on a specific course.

So, as long as the recorded lecture is password protected and available to those particular students only, appropriate acknowledgement is given and the relevant details are recorded and reported, the materials can lawfully be included. Any other non-licensed use of the materials (e.g. to place the recording on an open website) will require permission from the copyright owner.

Exceptions

There are certain exceptions where third party works may be lawfully included in a recording without permission or a licence. These situations arise where materials are included for the specific purpose of illustration for instruction (s.32 CDPA), for criticism or review, or quotation (s.30 of CDPA), caricature, parody or pastiche (s.30A CDPA), or in order to make an accessible copy (s.31A-F CDPA).

In order to satisfy the purposes of illustration for instruction (s.32) copying must be fair dealing, for a non-commercial purpose, carried out by someone giving or receiving instruction and be accompanied by a sufficient acknowledgment. S.30 is also limited to fair dealing, published works, and requires sufficient acknowledgement. S. 30A too is limited by fair dealing and the stated purpose.

‘Fair dealing’ is not defined, it will be a matter of degree and judgment and should be approached on a case by case basis

‘Fair dealing’ is not defined, it will be a matter of degree and judgment and should be approached on a case by case basis. Factors to consider include whether the dealing of the work would affect the market for the original, whether the amount copied is reasonable and appropriate, and whether the amount of the work is necessary to meet the purpose. So, including an entire literary work when a short extract would be enough to illustrate a teaching point, write a review, or create a parody is unlikely to be considered ‘fair’.

In relation to a disabled person accessing or making recordings, s.31A-F of the CDPA provides two situations where either a disabled person can make an accessible copy of a work, or have made accessible copies of protected works, without the need to seek permission from the copyright holder.

In brief, a “disabled person” means a person who has a physical or mental impairment which prevents the person from enjoying a copyright work the same as a person who does not have that impairment. The first exception (s. 31A CDPA) allows a disabled person, or someone acting on their behalf, to make an accessible copy for personal use. The second exception (s.31B CDPA) allows an educational establishment to make accessible copies of protected works for the personal use of disabled people.

The institution, or the disabled person, must have lawful possession, or use, of a copy of the whole or part of a work. The exception does not apply where the same kind of accessible copies of the work are commercially available on reasonable terms by, or with the authority of, the copyright owner. Any charges levied must not exceed the cost of making and supplying the copy.

So, subject to certain conditions as stated above, providing lecture content for disabled students, including third party works, in an alternative format (e.g. video or audio recording) is likely to satisfy the definition of an ‘accessible copy’ and will not, therefore, be an infringement of copyright. Other rights relevant to lecture recordings will, of course, still apply.

More information on copyright exceptions for people who have a disability, is available on the Intellectual Property Office website.

In conclusion, where copying cannot satisfy a statutory exception such as those described above, permission or a licence from the copyright owner will generally be required to include third party protected works. Otherwise, there is a real risk that a copyright owner could sue for infringement. To avoid this risk entirely, all third party content must be removed and students should instead be referred to the resource so they can access it themselves under the provisions of fair dealing.

Data protection

Data protection is likely to be relevant where lectures are being recorded. The Data Protection Act 2018 and General Data Protection Regulation allow individuals to control how information about them is to be used. By recording identifiable living individuals - both lecturer and students - the institution is processing their personal data. Any processing must be done fairly and in line with the data protection principles.

It is likely that in order to process personal data fairly, a college or university should inform all parties that a lecture is taking place and at least provide an opt-out e.g. a specified area in the lecture room where recording will not take place. This might take the form of a statement made by the lecturer that a recording is taking place, explaining the purpose for the recording and to whom it will be disclosed or made available. Recordings cannot subsequently be used, without consent, for purposes incompatible with those for which they were made.

Where there is likely to be a significant contribution or presentation by another party, a signed consent form for that party prior to the recording may be preferable.

Accessibility

Accessible lecture recordings are likely to be of benefit to all learners, in addition to meeting the needs of those with disabilities. Ensuring accessibility is therefore another important consideration. As a provider of educational services, the Disability Equality Duty and the duty to make reasonable adjustments under the Equality Act 2010 will apply. This is particularly relevant for all core teaching and learning material, which is very likely to include recordings of lectures.

As a provider of educational services, the Disability Equality Duty and the duty to make reasonable adjustments under the Equality Act 2010 will apply

Reasonable adjustments often include the provision of alternative formats e.g. a transcript of the lecture and/or provision of subtitles. However, the law does not give a black-and-white test as to what adjustments must be available, and in each case, a judgment will have to be made according to practicality, appropriateness, the intended audience and the overall resources of the institution.

Factors such as the availability of equal quality alternatives, the purpose of the materials and whether that particular adjustment would be suitable for the desired learning outcomes will be relevant for the institution in considering whether, and how, to provide that alternative format. Supplying a transcript of a conversation in Spanish, for example, is clearly not an appropriate adjustment where the learning objective is to listen to the recording and reproduce the dialogue.

In essence, institutions have a legal duty to consider what anticipatory adjustments would be appropriate in order to achieve a more inclusive approach, where learners with disabilities can have a substantially similar learning experience. If this can be achieved without a transcript and/or subtitles then they need not be provided, although many institutions do so as a matter of course. On the other hand, where the learning experience does not allow equality, and a reasonable alternative is not made available, the institution is unlikely to meet their legal duty.

One way forward might be to consult a selection of learners for feedback on accessibility of recordings, and where possible, provide appropriate alternative formats. Many institutions already provide an option for learners and other users to report any difficulty in accessing materials, either embedded on the resource itself or on their websites. This benefits both the learners in accessing the content, and the college or university in actively promoting and highlighting issues of accessibility.

Liability

Liability may also be an issue for a college or university in recording lectures. This refers to the liability of the institution for content recorded and published. Where a lecturer, for example, infringes copyright or clearly endorses or advises on a particular matter negligently, this may lead to an action against the institution for damages. There are also risks where a lecturer makes potentially unlawful comments. This may attract liability for an institution where, for example, a defamatory remark is made about another individual. The institution, in making the recording available, by publishing it, may be liable for defamation and damages.

A notice and take down procedure is essential and may mitigate liability where individuals can easily contact the institution to remedy a situation

An institution may decide to include a disclaimer of liability for all content published. It is debateable, however, how effective such clauses will be in practice. The key issue in all cases is the awareness of the institution. Where there is any knowledge by the institution that defamatory comments have been made or inaccurate representations or infringing content have been included, these should be removed immediately. A notice and take down procedure is essential and may mitigate liability where individuals can easily contact the institution to remedy a situation. Universities and colleges should not, however, simply take down any material that is the subject of a complaint, but must assess complaints in the light of their legal obligation to secure freedom of speech within the law.

Summary

In recording lectures, institutions should think carefully about the implications of copyright and data protection law. This will include deciding how to tackle inappropriate content, performance rights, accessibility of the recordings produced, third party materials (where relevant exceptions do not apply) and the implications of recording identifiable individuals.

The most effective way forward, therefore, seems to be where institutions consider these areas in advance and, where applicable, provide processes that enable them to record lectures without infringing the rights of others.

Appendix one (pdf) contains a flow chart of the legal issues for quick reference.Appendix two (word doc) provides a model release form that may be adapted by institutions wishing to secure permissions and consent.

Guidelines and a policy on recording lectures will certainly clarify the process for all participants and make clear the institution’s position and approach.

The legal considerations should not be seen as insurmountable obstacles to the use and re-use of lectures. Rather, institutions that take into account the potential issues early on and address them in full can be confident in the knowledge that the law will not act as a barrier to their subsequent use.

Tutor checklist for lecture capture

This is a list of key questions for staff to consider before a lecture recording takes place. The aim of the list is to ensure issues are recognised and addressed appropriately to minimise risk. How the process is implemented in practice will depend on the policy of the individual institutions.

Is the material still in copyright?

Does the institution own the content to be included?

If so, the college or university can record it without risk of infringement e.g. materials have been created by employees in the course of employment, or copyright has been assigned to the institution.

If not, to avoid risk, a licence or a statutory exception must apply.

Does content include other peoples’ works?

If so, a licence or a statutory exception is required. This would be the case where the institution is recording third party works such as materials owned by students or consultants.

Does the institution have a licence which permits inclusion?

The CLA and ERA licences may apply to content included in a recording provided materials are used in accordance with the terms of a relevant licence.

Does the use of content satisfy a relevant copyright exception?

If so, the material can be included.

Exceptions include where a work is copied for the purpose of: illustration for instruction; criticism or review; quotation; or caricature, parody or pastiche. For more information on exceptions to copyright infringement, refer to our guidance on the Exceptions to infringement of copyright.

How are rights holders attributed?

Sufficient acknowledgement usually means the author and original work is identified by title or description, and will depend on the licence terms or exception being used. Specific exceptions require you to sufficiently acknowledge use of a work, unless it is impossible for reasons of practicality e.g. fair dealing with a work for the purpose of illustration for instruction.

Does a recording include commercially valuable, unpublished or sensitive content?

If so, this will increase the risk to the institution and more caution should be taken.

Are openly licensed alternatives available?

Use of materials which are openly licensed avoids risk of infringement.